CDC issued without confirming pending zone change noted in s149 certificate

Wednesday, 30 November, 2016
A certifier issued a complying development certificate (CDC) for work that could not be complying development due to the site's zoning. The certifier relied on an outdated s149 certificate which noted a draft local environmental plan (LEP) would be gazetted, with zoning changes prohibiting most types of complying development. The new LEP was in force when the CDC was issued.

Lessons identified from this case

  • Certifiers should take steps to ensure all information and documents relied on for a determination are current. Using outdated information exposes certifiers to unnecessary risk.
  • Certifiers must ensure developments they authorise via a CDC meet local (and other) planning requirements. A local council may offer advice but isn't responsible for verifying a certifier's decision.

Setting the scene: relevant legislative provisions

Environmental Planning and Assessment Act 1979

  • Section 149 allows a person to apply to a local council for a planning certificate showing the environmental planning instruments applicable to a particular lot, zoning and permissible land uses, and other relevant information specified by regulation.

Environmental Planning and Assessment Regulation 2000

  • Clause 279 lists what must be included in a planning certificate and refers to Schedule 4.
  • Clause 2 of Schedule 4 specifies, for each environmental planning instrument or proposed instrument, the land use zone.

State Environmental Planning Policy (Affordable Rental Housing) 2009

  • Clause 20 specifies the land use zones to which the policy applies.

Case details

The development was a secondary dwelling (granny flat) and attached garage, approved as complying development.

S149 certificate noted a new LEP was imminent

The CDC application was accompanied by a planning (s149) certificate stating the site was zoned 'E4 – environmental living' under a draft LEP.

Secondary dwellings are not permitted as complying development in environmental living zones.

The s149 certificate, issued in mid-September, was more than five months old when the certifier determined the CDC application the following March.

Even though the s149 certificate didn't give a commencement date for the draft LEP, given the fact there was a draft, the certifier should have confirmed which LEP was in force when determining the CDC application. Checking the NSW Legislation website (or contacting the council) would have shown if the new LEP was in force and confirmed the zoning.

The new LEP commenced in October. The council sent letters to notify certifiers in the area, but the certifier stated he didn't receive a letter.

Neither Codes nor AH SEPP permitted proposal as complying development

In March the certifier issued the CDC. The application nominated State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) as the relevant environmental planning instrument.

In fact, the CDC couldn't be issued under either the Codes SEPP or the State Environmental Planning Policy (Affordable Rental Housing) 2009 (AH SEPP) because:

  • under the Codes SEPP the only complying development allowed in an environmental living zone are rainwater tanks (clause 2.64) and subdivision (clause 2.75)
  • the AH SEPP (clause 20) doesn't allow a secondary dwelling in an environmental living zone.

An invalid CDC meant an occupation certificate couldn't be issued.

Council approves wastewater system and advises of CDC error

In February, the month before the CDC was issued, the council had approved alterations to the on-site sewage management system for the secondary dwelling under the Local Government Act 1993.

The covering letter for the approval, addressed to the builder, advised that complying development for a secondary dwelling was not permitted on the site due to the new zoning. The certifier submitted he had not receive a copy of this letter.

In April the council inspected the drainage works related to the approval.

The certifier submitted that the inspection should have prompted the council to advise that a secondary dwelling could not be built on the site as complying development.

Notwithstanding that the council's earlier (approval) letter did contain such advice, the inspection was carried out under the Local Government Act under a different set of requirements to those in the planning legislation. Also, a council officer inspecting drainage works is not obliged to ensure an approval issued by a certifier is correct.

Councils are not obliged to verify certifiers' decisions

The certifier noted in defence that the council didn't provide advice the CDC had been incorrectly issued when it was lodged with the council. The certifier considered that lodging the CDC allowed 'council to object or advise… if they have objections'.

However, certificates are lodged with a council in its role as the keeper of the public record, not so the council can verify a certifier's decision. The council's silence on the matter did not indicate acceptance of the CDC and it was unrealistic to expect the council to scrutinise the CDC.

Like all professionals, certifiers are expected to take responsibility for their work. On becoming aware of his error, the certifier immediately issued a 'notice of intention to issue an order' to stop work, and assisted the owner to apply for a building certificate.

The Board's findings

The Board's Disciplinary Committee found that the certifier had engaged in unsatisfactory professional conduct. It issued a reprimand, but didn't fine the certifier as the certifier had taken prompt action upon becoming aware of the error, assisted the owner and displayed willingness to undergo further training.

The Board recommended to the council that it review its process of informing local certifiers of important policy changes.

In conclusion

Certifiers are individually accountable for the determination of CDC applications.

It's a certifier's responsibility, and no-one else's, to issue certificates that comply with legislative requirements. To ensure certificates comply, certifiers should require all necessary documentation to properly assess an application and have regard to relevant current information before determining an application.

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